Committee unanimously approves LePage’s change to conflict law

AUGUSTA — A legislative committee on Friday unanimously approved a bill designed to amend conflict-of-interest provisions that prompted the resignation of the state’s top environmental regulator and suspended hearings on its permitting board.

Gov. Paul LePage is sponsoring the proposal. It has the support of Republican and Democratic leaders.

LePage has said the bill would allow the Board of Environmental Protection to resume its work by aligning state law with federal regulations. The BEP has been forced to postpone hearings because of a recently discovered conflict provision in the Clean Water Act that could disqualify several board members from serving.

The existing law also led to the resignation and reassignment of LePage’s DEP chief, Darryl Brown, a Livermore Falls resident and former CEO of Main-Land Development.

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The amended language could conceivably clear the way for Brown’s reappointment. However, LePage has insisted that Brown won’t be renominated and that he will remain the director of the State Planning Office.

If enacted, the bill would allow the Board of Environmental Protection to resume its work on several significant issues, including a plan to dredge the Kennebec River, a public hearing on noise levels for wind turbines and an appeal of the recently awarded DEP permit for the Oxford County casino.

The casino permit appeal is linked to Brown’s resignation. The Androscoggin River Alliance, the group that first noted Brown’s conflict with the Clean Water Act, argues that the DEP permit is invalid, both on its merits and because Brown was overseeing the agency.

Brown’s former company, Main-Land, is the lead developer for the casino project. His earnings at Main-Land triggered the conflict provision in the Clean Water Act.

While Maine’s law closely mirrors federal law, it has language that prevents the state from insulating Brown from the conflict issue.

The BEP has suspended its work until its Clean Water Act conflicts are resolved. According to board Chairwoman Susan Lessard, roughly half of the 10-member citizen board — including Lessard — is affected by current law.

Lessard said the board could resume work by mid-June if the governor’s bill is enacted quickly.

While Democrats were eager for the BEP to continue its work, they were initially nervous about LePage’s proposal to amend the state law regarding the DEP commissioner. Some feared the bill would lower the conflict-of-interest standard, thereby creating another Brown situation.

The amended version of the bill appears to have eased those concerns.

The bill now requires the governor to provide a mitigation plan to the Legislature if he or she nominates a DEP chief with a potential conflict of interest.

Such a plan could require the DEP to create a delegate within the department to handle permits that could potentially put the commissioner in violation of the Clean Water Act, such as storm-water or wastewater discharge permitting. The bill also requires that the delegate not work for the commissioner.

The amended proposal will likely get reported out of committee early next week before heading to the Senate for preliminary approval.

The bill doesn’t solve all of the conflict problems with the BEP. The remaining issues would have to be remedied at the federal level.

However, the bill would allow potentially conflicted board members to recuse themselves from certain permit decisions. Current state law doesn’t allow recusal by board members.

While recusal could solve the BEP problem, some lawmakers worried that the panel would lack a quorum. The issue could be more pronounced after the enactment of LD 1, the regulatory reform bill that reduces the citizen panel from 10 to seven members.

BEP Chairwoman Lessard told the Legislature’s Environmental Committee on Friday that the board should be able to maintain a quorum even after LD 1 is enacted.

smistler@sunjournal.com

This story was updated to clarify that Brown did not physically sign the DEP permit for the Oxford casino project.